COURT: The defendant pleaded guilty to a charge of trafficking in dangerous drugs and admitted the Summary of Facts in the committal proceedings at the Eastern Magistracy on 14 October 2024. The case was then committed to the Court of First Instance for sentence. Before this court, he confirmed his plea and his agreement to the Summary of Facts through counsel.
The particulars of the charge state that on 6 October 2022, outside No. 16 Dundas Street, Mongkok, Kowloon, in Hong Kong, the defendant unlawfully trafficked in dangerous drugs, namely, 84.1 grammes of a mixture containing 65.3 grammes of heroin hydrochloride and 28.75 grammes of a crystalline solid containing 28.64 grammes of methamphetamine hydrochloride (commonly called ‘Ice’).
The Summary of Facts admitted by the defendant provides, inter alia, as follows.
At around 8.40 pm on 6 October 2020, the police set up a snap check at Dundas Street near Tung On Street, Mongkok, Kowloon. At around 8.48 pm, the police intercepted a taxi,
of which the defendant was the passenger. The police requested the defendant, who was acting furtively, to alight the taxi and searched him outside No. 16 Dundas Street. The police found, in the trouser pockets of the defendant, the following items.
In the left pocket
(1) a plastic bag containing two transparent resealable plastic bags, respectively containing (i) 28.1 grammes of a mixture containing 21.6 grammes of heroin hydrochloride (E1) and (ii) 28.1 grammes of a crystalline solid containing 28.0 grammes of methamphetamine hydrochloride (E2);
(2) a plastic bag containing two transparent resealable plastic bags, respectively containing (i) 28.0 grammes of a mixture containing 21.9 grammes of heroin hydrochloride (E3) and (ii) 28.1 grammes of a mixture containing 21.8 grammes of heroin hydrochloride (E4).
In the right pocket
(3) a pack of tissue paper, in which was hidden a transparent resealable plastic bag containing 0.65 grammes of a crystalline solid containing 0.64 grammes of ‘Ice’ (E5).
In summary, the defendant had on him 84.1 grammes of a mixture containing 65.3 grammes of heroin hydrochloride and 28.75 grammes of a crystalline solid containing 28.64 grammes of ‘Ice’.
The defendant under caution and at a cautioned video-recorded interview held on 7 October 2022 asserted that the dangerous drugs found on him had been purchased from a man on the street near Prince Edward Road/Boundary Street for about $8,000 for his own consumption. However, the defendant no longer maintains that position. In the Summary of Facts, the defendant admitted that at all material times, the defendant possessed all the drugs seized (ie E1 to E5) for the purpose of unlawful trafficking.
In October 2022, the average retail price for heroin was about HK$762 per gramme whereas the average retail price for methamphetamine was about HK$685 per gramme. The heroin and ‘Ice’ seized from the defendant could respectively be sold at street level for HK$64,084 and HK$19,694.
Regarding the personal background of the defendant, the defendant was born on 9 August 1979 in Hong Kong and is currently 45 years of age. He has studied up to Secondary Form 3 level. He is single. His parents have passed away and he has a half-sister now aged over 60. The defendant has four previous convictions, one of which is related to dangerous drugs. He was convicted of possession of dangerous drugs in October 2000, for which he was fined $1,500.
The sentencing approach for the offence of trafficking in a dangerous drug is laid down in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, which is further clarified in HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186. The first step is to identify the relevant sentencing band (or bracket) applicable to the quantity of drug concerned. The second step is an assessment of the role and culpability of the defendant based on the evidence before the court. The third step is to identify where in the relevant band of the guidelines the defendant comes. It may be necessary to go outside the band to reflect the particular circumstances of the offence and the role of the defendant. The fourth step is to consider aggravating factors which bear on the “notional sentence after trial”. The fifth step is to have regard to any matters of mitigation, bearing in mind that “personal circumstances will count for little, unless they are exceptional”. The sixth and final step is for the judge to stand back and look at the overall sentence passed in order to ensure that it is a “fair, just and balanced sentence”.
Regarding the first step, the task is to identify the appropriate range applicable to the quantity of drugs concerned. In HKSAR v Huang Ruifang [2025] HKCA 234, the guideline for a quantity of 65.3 grammes of heroin is 8 years and 4 months’ imprisonment as the starting point. According to the same case, the guideline for a quantity of 28.64 grammes of ‘Ice’ is 8 years and 2 months’ imprisonment as the starting point.
As two different kinds of dangerous drugs were involved, with a combined weight of 93.94 grammes, in order to assist me in identifying the starting point of the offence, the “absurdity test”, “ratio test” and “conversion test” as explained in HKSAR v Chan Yuk Leong, CACC 318/2013 (Judgment dated 8 April 2014) have been conducted with the following result: 11 years and 5 months under the “absurdity test”, 9 years and 10.3 months under the “ratio test”, and 9 years and 11.8 months under the “conversion test”.
Having considered the above result in the round, and taking into account that more than one type of dangerous drug is involved, I consider that the starting point of 9 years and 11 months would be appropriate in the present case. That is purely based on the quantity of and types of drugs involved, before any consideration of the defendant’s role in the offence.
Second, concerning the defendant’s role and culpability, I accept that the defendant was a courier of the drugs.
Third, in view of the aforesaid finding of the defendant’s role and culpability, I consider that 9 years and 11 months would be the appropriate notional sentence after trial for the offence in question.
Fourth, I consider that there is no aggravating factor which would enhance the notional sentence after trial.
Fifth, I consider that the only mitigating factor which may reduce the defendant’s sentence is his timely plea, for which I will give him a one-third discount. Accordingly, the defendant’s sentence is reduced to 6 years and 7 months’ imprisonment.
Finally, I consider that a sentence of 6 years and 7 months’ imprisonment is a fair, just and balanced sentence. Accordingly, the defendant is sentenced to 6 years and 7 months’ imprisonment.